TMI Blog2018 (4) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the impugned order dated 22.08.2017 is liable to be set aside - Decided in favour of assessee. - W.P.No.25210 of 2017 and W.M.P.No.26653 of 2017 - - - Dated:- 28-3-2018 - M. Duraiswamy, J. For Petitioner : Mr.S.Sathiyanarayanan For Respondent : Mrs.Hema Muralikrishnan ORDER The petitioner has filed the above Writ Petition to issue a writ of certiorarified mandamus to call for the records of the respondent in his proceedings leading to issuance of Order in reply to objection for reopening of assessment under Section 147 dated 22.08.2017 and to quash the same and to direct the respondent to drop the re-assessment proceedings. 2.The brief case of the petitioner is as follows: (i)According to the petitioner, they are engaged in the generation of electricity through non-conventional source of Wind energy. The petitioner's income tax return for the assessment year 2012-13 was taken up for scrutiny assessment and after detailed scrutiny, including details relating to the addition to fixed assets by way of Windmills, the Assessing Officer had passed an assessment order. Subsequently, on account of Revenue Audit objection, a notice was sent for reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate issued by TANGEDCO that all the certificates present a clear picture that the Units have been generated from 30.03.2012 to 13.04.2012. The TANGEDCO had issued the certificates from 30.03.2012 to 13.04.2012, since the Bill in question is dated 12.04.2012 (i.e.) from GAMESA Wind Turbines Private Limited, which entity has erected and commissioned the Windmills. The Certificate issued by TANGEDCO does not disclose the Units received from the assessee from 30.03.2012 to 13.04.2012. Therefore, it becomes necessary to ascertain whether the commissioning was done on 30.03.2012, in view of the fact that the Bill for commissioning and erection is dated 12.04.2012 issued by GAMESA Wind Turbines Private Limited, Chennai. (iv)The Bill dated 12.04.2012 would reflect the fact that the charges claimed on completion of erection and commissioning of 8 Wind Turbine Generators. Therefore, it is clear that the erection and commissioning was not done before 31.03.2012 and assuming that the Wind Turbine Generators are commissioned on or prior to 31.03.2012, the Bill dated 12.04.2012 remains a contradictory fact. The order dated 22.08.2017 has been passed only after considering the present facts, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Writ Petition. 4.Heard Mr.S.Sathiyanarayan, learned counsel appearing for the petitioner and Mrs.Hema Muralikrishnan, learned senior standing counsel appearing for the respondent. 5.Mr.S.Sathiyanarayanan, learned counsel appearing for the petitioner submitted that the respondent had passed the impugned order for reopening the assessment for the assessment year 2012-13 after the passing of the scrutiny assessment order on 13.03.2015, which was passed by the Assessing Officer after examining the records in details. Further, the learned counsel submitted that the respondent had come to a wrong conclusion that the assessee has failed to disclose fully and truly all material facts required for the assessment. The learned counsel also submitted that when the Assessing Officer was satisfied about the eligibility of the petitioner to claim depreciation based on the documents furnished and also on the facts, cannot now reopen as it only amounts to case of change of opinion and therefore, reassessment proceedings cannot be sustained. 5.1.In support of his contentions, the learned counsel for the petitioner relied upon a judgment reported in (2017) 99 CCH 0019 DelHC [Director o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly reopened the assessment of the petitioner. Further, the learned standing counsel submitted that the impugned order is only an order disposing of the petitioner's objections to the reasons for reopening of the assessment and that the petitioner has contended as though the impugned order called upon them to prove their case. The learned counsel further submitted that the impugned order is not per verse and there was no mala fide intention to pass the impugned order. 6.1.In support of her contentions, the learned senior standing counsel relied upon a judgment reported in [2002] 125 Taxman 965 (SC) [GKN Driveshafts (India) Ltd., Vs. Income Tax Officer] wherein the Apex Court held as follows: ... There was no justifiable reason to interfere with the order under challenge. However, it was clarified that when a notice under Section 148 is issued, the proper cause of action for the noticee is to file return and if he so desires, to seek reasons for issuing notice. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the Assessing Officer is bound to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by TANGEDCO. In the absence of any material to disbelieve the Certificate issued by TANGEDCO stating that the Generators were commissioned on 29.03.2012, the present attempt to reopen the assessment is a clear change of opinion. The respondent could not have reopened the assessment when the Certificate and materials were considered by the Assessing Officer while completing the assessment and passing the order dated 13.03.2015. 9.The judgment relied upon by the learned counsel for the petitioner applies to the present case. 10.Since the facts of the present case are different from the judgment relied upon by the learned standing counsel for the respondent, the same is not applicable. 11.The respondent himself, in his counter, has stated that had the petitioner produced the Commissioning Certificate issued by the Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), there would have been no reason for reopening the assessment. Now that the petitioner had produced the Certificate from the Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) and inspite of receiving the same, reopening of the assessment cannot be sustained. The present attem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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